Citation Nr: 0729417
Decision Date: 09/19/07 Archive Date: 10/01/07
DOCKET NO. 05-23 034 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for a
neurological disorder to include Friedreich's ataxia, claimed
as multiple sclerosis.
2. Entitlement to service connection for a neurological
disorder to include Friedreich's ataxia, claimed as multiple
sclerosis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Robert J. Burriesci, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1970 to April
1973.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2004 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Atlanta, Georgia.
FINDINGS OF FACT
1. In a November 2002 rating decision, the RO denied the
veteran's claim of service connection for multiple sclerosis;
the veteran was sent notice of the decision and of his
appellate rights on November 22, 2002.
2. The veteran filed a timely Notice of Disagreement (NOD)
in February 2003, and on December 1, 2003, the RO issued him
a pertinent Statement of the Case (SOC); however, the
veteran's Substantive Appeal was not received until February
13, 2004; the RO determined that the Substantive Appeal was
not timely.
3. The evidence received since the RO's November 2002 rating
decision is not duplicative or cumulative of evidence
previously of record, and raises a reasonable possibility of
substantiating the veteran's claim for service connection for
a neurological disorder to include Friedreich's ataxia.
4. The veteran's Friedreich's ataxia was first manifested in
service.
CONCLUSIONS OF LAW
1. The RO's November 2002 rating decision that denied the
veteran's claim for multiple sclerosis is final. 38 U.S.C.A.
§ 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103
(2002).
2. New and material evidence has been submitted since the
RO's November 2002 rating decision to reopen the veteran's
claim of entitlement to service connection for a neurological
disorder including Friedreich's ataxia. 38 U.S.C.A. § 5108
(West 2002); 38 C.F.R. § 3.156(a) (2006).
3. Friedreich's ataxia may be considered to have been
incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West
2002); 38 C.F.R. §§ 3.102, 3.303 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Reopening of Previously Adjudicated Claim
Entitlement to service connection for multiple sclerosis was
previously denied by the RO in a rating decision dated
November 2002. Service connection was denied because there
was no evidence of a diagnosis of multiple sclerosis during
active service or within the seven-year presumptive period
following discharge and no credible medical opinion linking
the veteran's current neurological disorder to service. In a
July 2004 rating decision, the RO reopened the veteran's
claim but denied on the basis that multiple sclerosis had not
been clinically diagnosed.
Subsequent to the July 2004 rating decision, medical records
were received which include a diagnosis of Friedreich's
ataxia. The RO readjudicated the veteran's claim restating
it to include the diagnosis of Friedreich's ataxia, and
confirmed and continued the denial in a May 2005 Statement of
the Case as a congenital or developmental condition that was
not aggravated beyond the natural progress in service.
The evidence of record at the time of the RO's November 2002
rating decision consisted of the available service medical
records, private medical records from Spears Chiropractic
Hospital and Dr. N for treatments and evaluations in February
1975 and July 1977, and a statement by Dr. N dated August
1977 indicating spino-cerebellar degeneration. Other than
Dr. N's statement in August 1977 indicating that multiple
sclerosis was a "long shot", there was no evidence of
record addressing whether the veteran had multiple sclerosis
and, if so, whether it was related to service.
The veteran filed a Notice of Disagreement with the rating
decision in February 2003 and the RO then sent a Statement of
the Case on December 1, 2003. The veteran filed a
Substantive Appeal, which was received at the RO on February
13, 2004. The RO subsequently sent the veteran a letter
dated in February 2004, which informed him that the appeal
was untimely filed and provided him with appellate rights.
An appeal on that issue was not initiated.
As the veteran did not submit a timely Substantive Appeal and
thus failed to perfect his appeal of the RO's November 2002
rating decision, that determination became final based on the
evidence then of record 38 U.S.C.A. § 7105 (West 2002);
38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2002).
However, if new and material evidence is presented or secured
with respect to a claim that has been disallowed the
Secretary shall reopen the claim and review the former
disposition of the claim. 38 U.S.C.A. § 5108; Manio v.
Derwinski, 1 Vet. App. 140, 145 (1991).
The RO noted in the rating decision that it had reopened the
claim. Regardless of the RO's actions, the Board must still
determine de novo whether new and material evidence has been
submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir.
2001) (reopening after a prior unappealed RO denial); Barnett
v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a
prior Board denial); Wakeford v. Brown, 8 Vet. App. 237
(1995) (VA failed to comply with its own regulations by
ignoring issue of whether any new and material evidence had
been submitted to reopen the veteran's previously and finally
denied claims).
Under 38 C.F.R. § 3.156(a), evidence is considered "new" if
it was not previously submitted to agency decisionmakers.
"Material" evidence is evidence which, by itself or when
considered with previous evidence of record, relates to an
unestablished fact necessary to substantiate the claim. New
and material evidence can be neither cumulative nor redundant
of the evidence of record at the time of the last prior final
denial of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. For the
purpose of determining whether a case should be reopened, the
credibility of the evidence added to the record is to be
presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).
The Court has clarified that, with respect to the issue of
materiality, the newly presented evidence need not be
probative of all the elements required to award the claim as
in this case dealing with a claim for service connection.
Evans v. Brown, 9 Vet. App. 273 (1996). However, it is the
specified bases for the final disallowance that must be
considered in determining whether the newly submitted
evidence is probative. Id. Such evidence must tend to prove
the merits of the claim as to each essential element that was
a specified basis for that last final disallowance of the
claim. Id.
Evidence associated with the claims folder since the November
2002 rating decision includes the veteran's VA medical
records from March 2002 to July 2003, an evaluation for
ataxia performed by VA in September 2004, a VA medical
opinion dated in January 2005, a transcript of the veteran's
testimony at a December 2004 RO hearing, and statements and
written argument submitted by or on behalf of the veteran.
The newly submitted medical evidence provides a diagnosis of
Friedreich's ataxia as well as an opinion as to whether it
had its onset in service. As such, given the basis of the
RO's November 2002 rating decision, the evidence raises a
reasonable possibility of substantiating the claim and is
thus "new and material" under the provisions of 38 C.F.R.
§ 3.156(a). Thus, the claim is reopened.
Entitlement to Service Connection
Service connection may be granted for disease or injury
incurred in or aggravated by service. 38 U.S.C.A. §§ 1110,
1131 (West 2002). The veteran is presumed to be of sound
condition when examined, accepted, and enrolled for service,
except as to defects, infirmities, or disorders noted at the
time of the examination, acceptance, and enrollment, or where
clear and unmistakable evidence demonstrates that the injury
or disease existed before acceptance and enrollment and was
not aggravated by such service. 38 U.S.C.A. §§ 1111, 1132
(West 2002).
VA's General Counsel has held that to rebut the presumption
of sound condition under 38 U.S.C.A. § 1111, VA must show by
clear and unmistakable evidence both that the disease or
injury existed prior to service and that the disease or
injury was not aggravated by service. VAOPGCPREC 3-2003
(2003), 69 Fed. Reg. 25,178 (2004); see also Wagner v.
Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). VA amended
38 C.F.R. § 3.304(b), effective May 4, 2005, to reflect a
change in the interpretation of 38 U.S.C.A. § 1111 by the
Federal Circuit and VA's General Counsel, and the regulation
now provides that to rebut the presumption of soundness, VA
must establish by clear and unmistakable evidence both that
the disability existed prior to service and that it was not
aggravated by service.
Establishing service connection, therefore, generally
requires (1) medical evidence of a current disability; (2)
medical, or in certain circumstances, lay evidence of in-
service occurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between the claimed in-
service disease or injury and the present disability.
Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. §
3.303(a) (2006). Service connection also may be granted for
any disease diagnosed after discharge when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
In the case of diseases that are congenital, developmental,
or familial in origin, VA may find that the disease, by its
very nature, preexisted the veteran's military service.
VAOPGCPREC 82-90 (1990). Then the question becomes whether
the manifestations of the disease in service constitute
"aggravation" of the condition. Id. However, a disease of
hereditary origin can be incurred in service. "They can be
considered to be incurred in service if their symptomatology
did not manifest itself until after entry on duty."
VAOPGCPREC 67-90 (1990). "The mere genetic or other
familial predisposition to develop the symptoms, even if the
individual is almost certain to develop the condition at some
time in his or her lifetime, does not constitute having the
disease." Id. "Only when symptomatology and/or pathology,
in the sense of an active disease process, not just a mere
predisposition to develop a disease, which process may or may
not precede symptomatology exist can he or she be said to
have developed the disease." Id.
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. 38 U.S.C.A. § 5107 (West 2002);
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The veteran's service medical records reflect that he did not
have any neurological disorders upon induction. The
veteran's service medical records further show that the
veteran was seen for a complaint of incoordination. The
Report of Medical Examination at separation indicates that he
was found to be normal neurologically.
The veteran reports that during basic training he was
"called on" for failing to march in a straight line and
that a check by an army physician at the time revealed no
neurological disorders. The veteran was diagnosed with
Friedreich's ataxia in July 2002. The VA physician who
provided the December 2004 medical opinion indicated that
"[i]t appears that his symptom onset occurred during his
early military service." The VA physician indicated that
"his symptoms sound as though they were worsened during his
military time." She added that it was suspected that "the
symptoms would have been inexorably occurring because of the
genetic and progressive nature of the disease."
Friedreich's ataxia is defined as "an autosomal recessive
disease, usually beginning in childhood or youth, with
sclerosis of the dorsal and lateral columns of the spinal
cord. It is attended by ataxia, speech impairment, lateral
curvature of the spinal column, and peculiar swaying and
irregular movements, with paralysis of the muscles,
especially of the lower extremities." Dorland's Illustrated
Medical Dictionary 160 (27th edition 1988). Friedreich's
ataxia is accordingly not a defect as contemplated by
Congress in title 38. Therefore, it may be incurred in
service by way of a demonstration of onset of an active
disease process in service. In the instant case, the veteran
was inducted without any finding of neurological disorder.
During service, he reported incoordination and upon discharge
noted dizziness. A VA physician indicated that it appeared
the symptoms of Friedreich's ataxia had their onset in
military service.
In light of VAOPGCPREC 67-90, the Board cannot rebut the
presumption of soundness upon induction because it cannot
adequately address the first prong, whether the disease
preexisted service. The current diagnosis and nexus opinion
provided by the December 2004 VA physician provide sufficient
support for the veteran's assertion that his current
neurological disorder had its onset in service. Accordingly,
service connection for Friedreich's ataxia is granted.
Duty to Notify and Assist
In this decision, the Board reopens the veteran's claim of
service connection for neurologic disorder and grants service
connection for Friedreich's ataxia, which represents a
complete grant of the benefit sought on appeal. Thus, no
discussion of VA's duties to notify and assist is required.
ORDER
Service connection for Friedreich's ataxia is granted.
____________________________________________
S.S. TOTH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs